November 30, 2007

Site Tracks Sales of Lawyers' Lairs

Did you know that Mel M. Justak, an estate-planning associate at Reed Smith in Chicago, and his wife just sold their two-bedroom condo in Chicago's Lincoln Park neighborhood? They got $340,000 for it, $4,000 less than they paid to purchase it in 2003. Perkins Coie IP associate Douglas L. Sawyer and his wife fared better in selling their four-bedroom Lincoln Park home, receiving $1 million for a place they bought in 2005 for $925,000. Meanwhile, Faith Bugel, a staff attorney for the Environmental Law & Policy Center in Chicago, and David A. Rickard got a good deal for themselves in purchasing a four-bedroom, 5.1 bath home in Lincoln Park for $1.73 million. They bought it from Chicago Title, which paid a million more for the property in 2003.

I know all this not because I am well connected to real estate agents in the Windy City. No, I read about each of these transactions on the unusual Web site Chicago BlockShopper.com. Launched in May 2006, it reports on real estate transactions in Chicago's Lincoln Park and Lake View neighborhoods. A companion site, BlockShopper St. Louis, does the same for suburban St. Louis County. The site does not favor lawyers so much as lawyers favor the well-to-do neighborhoods it covers. The transactions above were reported with headlines touting the buyers' or sellers' occupations. Thus:

There are plenty of other professionals featured as well -- investment bankers, financial consultants, business executives, doctors and bank managers, to name a few. Each article includes a Google map showing the location of the property and photograph of the property's exterior.

That is more or less the question answered by the Eastern District of Pennsylvania in a decision issued last July that Boston IP lawyer Lee Gesmer dissects in a post yesterday at his MassLawBlog. In a case brought against a law firm for copyright infringement based on its printing and viewing Web pages, Gesmer analogized the arguments as so bizarre that they were "like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival."

It seems that lawyers at the law firm Harding, Earley, Follmer & Frailey of Valley Forge, Penn., in the course of investigating a client's trade secrets and trademark infringement case, viewed and printed pages from the Web site of Healthcare Advocates Inc. -- both pages from its then-current site and archived pages found via the Wayback Machine. Healthcare sued the law firm, alleging that its surfing of these pages violated copyright law, the Digital Millenium Copyright Act and the Computer Fraud and Abuse Act.

The wrinkle in the case was that Healthcare had sought to exclude its pages from the Wayback Machine through the use of a robots.txt file that should have blocked the Wayback crawler from Healthcare's site. But a malfunction on the part of the Wayback Machine let it capture these pages at the very time that the Harding lawyers were looking for them. Of course, the Harding lawyers had no way of knowing that Healthcare had sought to block its pages or that the Wayback Machine had malfunctioned.

Given this, the federal court dismissed Healthcare's claims against the firm. But Gesmer is struck by how far the lawsuit was able to progress before getting thrown out:

The extraordinary thing about this decision, to my mind, is the time, effort and expense (the Harding firm spent over $170,000 in fees and expenses) that went into defending against allegations that should (in this writer’s opinion) never have been brought in the first place, or at least dismissed once the facts were clarified for Healthcare. Instead, the case dragged on for two years; the docket sheet has around 80 entries; both sides hired computer experts, and in the end the case was dismissed on summary judgment, in a decision where the judge spent almost 40 pages analyzing every claim made by Healthcare and dismissing it only after rigorous and in-depth analysis which went, in my opinion, far beyond the call of duty.

When the Association of Trial Lawyers of America changed its name to the American Association for Justice, it purposefully wanted to remove "trial lawyers" from its name as part of an image makeover for itself. (I criticized the change when it happened and later reported on another's criticism.) But even though the AAJ does not want to call itself a trial lawyers association, it is unwilling to let others adopt that moniker.
As The Washington Post reports today, the AAJ has brought in trial lawyers of its own to file suit against the start-up organization that calls itself The American Trial Lawyers Association, or TheATLA. The AAJ wants TheATLA to drop the name, arguing it is confusing and infringes the AAJ's trademark on the acronym ATLA. Predictably, TheATLA sees it differently:

TheATLA says it is not trying to rip off the name of the country's premier trial lawyer lobbying group or even to compete with AAJ. 'The name defines who we are and what we do,' said J. Keith Givens, TheATLA's main founder and a senior partner in the national law firm founded by the late Johnnie Cochran, of O.J. Simpson fame. Givens, a well-known Alabama plaintiff's lawyer, asserted that AAJ abandoned the name ATLA last year, freeing up its use. Besides, he said, his group is TheATLA, which is different.

Just to muddy the waters further, a second organization, the American College of Trial Lawyers, also sued TheATLA in federal court this month, this time in Montgomery, Ala., to prevent it from using the name American Trial Lawyers Association.

TheATLA describes itself as an organization composed of the top 100 trial lawyers from each state. Membership is obtained "through special invitation," the site says. The Post reports that thousands of those special invitations were sent out this fall to lawyers throughout the United States. Regardless of whether TheATLA gets to keep its name, founder Givens tells the Post, the group will continue to "exist, function and survive."

Turkewitz isn't paranoid: it's not just PI blogs that were omitted, but many of the dozens of excellent "niche practice blogs" (think California Estate Planning Blog or the whole genre of family law blogs. As Todd Smith of Texas Appellate Law Blog observes here, "the honorees tend to be news-oriented or big-picture blogs -– very few state-specific blogs made the list. That’s not terribly surprising, considering the source."

Not surprisingly, Kevin O'Keefe calls the competition for what it largely is: a beauty pageant. (He asks "Why not have a contest as to which blogging lawyer looks best in a swim suit?" -- now that would generate some conversation!) But O'Keefe points out that these kinds of contests can "be damaging to the growth of law blogs" by deterring more lawyers from starting blogs, fearing that no one will read them because they're not included on a top ten list. As O'Keefe points out, nothing could be further from the truth: for every niche that's covered by a blog, there'll be a corresponding audience that wants to learn about it.

Do you intend to cast a vote? And what's your opinion of the ABA's Top 100 contest? A publicity stunt? Meaningful recognition for law bloggers? And who wasn't included who should have been, and what characteristics in your view make for a "top blog?" Send your comments below.

Perhaps our profession has grown so jaded with stratospheric jury verdicts, multi-million dollar fee awards in bankruptcy proceedings and $1,000-an-hour billing rates that by comparison, $42 million fee for five months of work doesn't seem unreasonable on its face. Fair enough. But what if the $42 million fee comes on top of $18 million in legal fees, paid on an hourly basis for an estate matter, plus additional "gifts" of $5 million? And what if the $18 million in fees that were paid produced a $60 million settlement offer that was on the table when the lawyers renegotiated their fee agreement so as to entitle them to a 40 percent cut of the total proceeds received? And finally, what if after renegotiating the agreement, your client still came away with the same $60 million settlement that she would have received anyway, after the lawyer took his 40 percent cut (or $42 million) of the eventual $100 million award? Would all of those considerations make you change your mind about the reasonableness of the fee and the underlying fee agreement?

Nope...at least if you're one of the New York Appellate Division (First Department) justices who signed onto the majority opinion in Lawrence v. Miller. As reported in the New York Times, the court ruled that "the 40 percent fee, worth about $42 million -- that was claimed by the law firm Graubard Miller, from Alice Lawrence the 83-year-old widow of the real estate developer Sylvan" was not excessive on its face, and that the reasonableness of the fee should be determined at trial. However, one justice called the fee "exorbitant," finding that the retainer agreement had been signed when a $60 million settlement offer was on the table, and that when the case settled just five months later for $100 million, the firm's 40 percent cut ($42 million) was essentially equal to the additional amount that it won. In other words, the petitioner herself received no benefit whatsoever from the renegotiated fee agreement, while her lawyers walked away with a $42 million windfall.

So why did the Lawrence even agree to this retainer? According to the decision, after mounting legal bills of about $1 million dollars a quarter (total fees amounted to roughly $18 million), Lawrence approached her attorneys for relief. So they offered her a "win-win deal" (for themselves). Lawrence would pay her lawyers an additional $1.2 million for hourly work, which would be capped. Thereafter, her lawyers would receive 40 percent of the proceeds for additional work (as an aside, the attorneys originally sought 50 percent, but Lawrence bargained them down. The court found that because Lawrence successfully negotiated a better deal, that her lawyers were insulated from a claim that they violated New York's ethics rules governing contingency percentages).

And that's still not the extent of it. Consider these added details from Mike Frisch at the Legal Profession Blog, who (politely) calls this case "a very useful teaching example for inquiry into the ethics of charging and collecting fees for legal services:"

Daniel Chill arrived at her home in Ridgefield, Connecticut; he claimed that, given the favorable results that he, along with Reich and Mallis, had obtained in the estate litigation, they were each entitled to a bonus; and, he explained that this type of bonus payment was routinely made to attorneys based upon excellent service. Alice then made payments to the three attorneys of the firm, defendants Chill, Elaine Reich, and Steven Mallis, in the amounts of $2,000,000, $1,550,000 and $1,500,000, respectively. Upon handing the checks to the individual attorneys, however, Chill told her to indicate on the check that this was a "gift" in bold letters. It is uncontroverted that the checks were then deposited into the respective attorneys' personal accounts. Then, in or about April 1999, Chill called Alice and advised her that due to the tax implications of her payments, the bonus amounts due to each of them would be dramatically reduced. Chill stated that in order to assure that the amounts paid over were indeed received in full, it was necessary that she file a gift tax return for 1998 and pay the appropriate taxes on behalf of the three attorneys. This tax amounted to approximately $2,700,000."

After reading the facts of this case, I wonder: if the fee agreement isn't unconscionable in this case, then does per se unconscionability even exist? Moreover, if I were representing the defendants in this matter, I wouldn't be touting the Appellate Division's decision to set the reasonableness of the fee agreement as a victory. After all, do they really want someone to inquire even further into this dirty, shameful set of facts? Mark Zauderer, who represented the law firm was quoted in the Times as saying “What the courts recognize is that a fee agreement is not unconscionable simply because it can produce a big fee,” he said. “You have to look at the value rendered to the client.”

OK, right. So where's the value here?

[update] So what's my view on fair payment? Given the lawyers' conduct in this case, I wouldn't find it per se unconscionable to deny them any payment beyond the $18 million already collected. However, if I'd been asked to propose an ethical way to renegotiate the fee agreement when Lawrence initially asked for a change, I might have suggested a 40 percent cut of any proceeds that the lawyers were able to recover above the $60 million already on the table. Lawrence's $18 million paid for the work that produced the $60 million fee, so giving the lawyers a 40 percent cut of the total amount produces a double recovery. But providing a 40 percent cut of those amounts beyond the $60 million would reward the lawyers for uncompensated work - and would have resulted in a $16 million payday for the lawyers, and a $24 million gain for the clients. Lawrence would have gotten relief from skyrocketing bills, while her lawyers would receive adequate incentive and ample compensation for the extra work. That seems like a true "win win" to me.

Over at his EDD Blog Online, Jeff Fehrman shares some shocking discoveries about companies' existing understanding of, and compliance with electronic data discovery (EDD) requirements. Fehrman says that forty percent of corporate counsel believe that their companies were not prepared when the revised Federal Rules of Civil Procedure on e-discovery came into effect last December, according to a recent study by LexisNexis. And indeed, the lack of familiarity with e-discovery requirements is so acute that a new study shows that one in five businesses have opted to settle a lawsuit to avoid the costly and time-consuming task of recovering and producing e-mail as required by the FRCP's e-discovery rules.

Given that failure to implement procedures to enable compliance with e-discovery is leading businesses to settle cases that they might have otherwise fought, what are the barriers to getting up to speed on e-discovery? The recent LexisNexis survey cites several challenges, including finding a budget to put systems in place, getting a "buy-in" from upper management on the importance of litigation preparedness and finding e-discovery staff with the right mix of IT and legal expertise. But some corporations are moving forward. At this time, 82 percent of survey respondents reported that their company has a document retention policy, two-thirds said they have implemented a formal legal holds process and more than 40 percent said they have conducted employee training for compliance this year. Twenty five percent of companies have hired an e-discovery counsel or ESI (electronically stored information) coordinator.

If your clients aren't up to speed on e-discovery or you need to brush up yourself, it's not too late. Take a look at this overview of EDD and how to step right in by Craig Ball in Law Technology News or visit some of the many blogs that my colleague, Bob Ambrogi identified in this column on e-discovery blogs.

November 28, 2007

Presidential Roundup

As we've noted before, with lawyer-candidates running for president (and with many of their spouses lawyers as well), this year's campaign holds special interest for lawyers. And so here's the latest roundup of law-related presidential election news and opinion:

Why John Edwards won't get Norm Pattis' vote. Norm Pattis writes that he finds it difficult to stomach trial lawyer John Edwards' candidacy. While Pattis respects Edwards' success as an attorney and would consider hiring him, he won't vote for him. The reason? He believes that at heart, Edwards is "a salesman, selling other people's troubles." Pattis continues:

When I listen to Edwards all I hear is a talented lawyer who grew wealthy preaching to jurors about pain, suffering and privation. But rather than live among the people he preached to, he squirreled away a fortune. He tells he us he comes from humble roots, yet everything in his legal career reflects a man desperate to escape from want and need and to become invulnerably wealthy. What makes John Edwards any different than the corporations he says he was attacking? Corporations have shareholders; we all invest in them. Edwards has invested only in himself.

As a lawyer, when you're considering which candidate to choose, does your choice coincide with the person whom you'd be most likely to hire, or like Pattis, are there other considerations that matter more?

Candidates Politicize a Judge's Decision. In today's editorial, the Washington Post comes down hard on Republican lawyer-candidates Mitt Romney and Rudy Giuliani for spinning a recent tragic murder into election fodder. As the editorial describes, a Massachusetts judge appointed by Romney when he was governor released Daniel Tavares on his own recognizance after he completed a 16-year prison term for killing his mother. Tavares subsequently murdered a newlywed couple and fled the state. Giuliani used the incident to criticize Romney's poor record on crime-fighting. And rather than defend his appointment and her decision (apparently, the judge was a veteran prosecutor who followed the law in releasing Tavares, Romney turned around and called for the judge's resignation. What's your pleasure -- a lawyer who exaggerates an incident (Giuliani) or a lawyer who tries to shift the blame for his decision to someone else (Romney)?

Biglaw Supports Obama. While Barack Obama portrays himself as an outsider who will change business as usual in government, the LA Times reports that like most of his colleagues, he too has accepted money from political action committees and Washington insiders. As the LA Times notes, "there was even money from currently-evil law firms that have major lobbying practices in Washington including Brownstein Hyatt and DLA Piper."

Michelle Obama, striking the work-life balance. These days, most lawyers are forever in search of that elusive work-life balance. This feature on Michelle Obama, Barack's lawyer-spouse, describes how she's juggling her career, kids and life on the campaign trail. No magic answers here; Obama has taken a leave of absence from her career to help her husband on the campaign trail.

Ever since the issuance of the Carnegie Report on the need to reform legal education and bring it into the Twentieth Century, the blogosphere has been abuzz with ideas on how to make that happen. Back in October, I posted here about some of the initiatives that law schools are considering, such as incorporating more practical skills programs or encouraging interdisciplinary study. And a recent National Jurist survey showing that law schools are not delivering what students want generated a new round of commentary on how to improve legal education.

But reform may not come in the way that many lawyers hope when they advocate for change, i.e., with increased clinical programs and opportunities for law students to learn about the business of law. Instead, law schools may opt for the business model implemented by Detroit Mercy (described in this article), whose reputation has been improved primarily through strengthening ties to biglaw.

As the article describes, Mark Gordon, Dean of Detroit Mercy has created a curriculum where students work as partners in a mock law firm, filing documents and tracking billable hours. And, Gordon has recruited attorneys from the nation's most successful law firms to serve on the law school's advisory board and to convice their firms and others to consider Detroit Mercy students for new hires.

To be sure, Gordon has also implemented clinics to help the poor and underserved. But as far as I can tell, it's not the clinics that have improved the school's reputation; rather, it's the connection that the school has built with prominent law firms nationwide.

In some ways, law school education is coming full circle, then. The so-called "elite schools" are turning to so-called "lower tier schools" to learn more about their clinical programs, as I described here, while schools like Detroit Mercy are elevating their rankings by building the types of prominent connections that elite schools already have in place because of their alumni. And with so much intermixing of ideas, perhaps the current law school ranking system won't matter much anymore.

Despite the class action lawsuit that's been filed against lawyer directory Avvo, alleging that Avvo's rating system is deceptive, Avvo must be doing something right. How else to explain that Martindale-Hubbell, the great-grandaddy of lawyer directories, is following Avvo's lead, and allowing clients to post reviews of their attorneys -- a feature that Avvo also offers. Larry Bodine of Law Marketing Blog has the scoop.

From Bodine's post (which in turn, quotes from an ad in PM Forum's Professional Marketing magazine), here's how the Martindale system will work:

Law firms can hand-pick five or more clients to participate in Client Reviews. There's nothing barring a firm from lobbying its selected clients or even pre-writing the reviews for them. The questionnaire "comprises seven questions that seek recommendations regarding a law firm's quality of legal representation, client service, value for money, practice areas (up to 5), industries (up to 5), geography, and whether the client would engage the firm for future legal matters." If a firm gets a single bad review, it can choose to delete all the reviews from the firm's profile on martindale.com. It's all-or-nothing: either all the reviews are published, or none. If the firm decides to publish all the reviews, Martindale will issue a press release, mention it in their e-newsletter to 25,000 in-house counsel, send announcements to any 10 corporate counsel, and give it featured status in a Top 10 list of newly reviewed law firms on martindale.com.

For some time, Martindale-Hubbell has attempted to move beyond an image of a large set of thick tan books that sit mouldering in the library. They are clearly asking for a stretch from account reps previously tasked with signing up firms for directory entries. Perhaps also a tacit admission that upstart Avvo is having an effect on LexisNexis strategy?

As for me, I'm wondering what's ahead. Will we see lawsuits against Martindale for "deception" where a firm, rather than clients, writes its own review? Allegations of damage to business by those firms which receive negative ratings and delete all their ratings (thus, leading clients to suspect that the firm couldn't find positive recommendations)? Given the double standard in the profession between established companies like Martindale and upstarts like Avvo, I doubt that Martindale has anything to worry about.

Well, now there's Niagara Falls City Court Judge Robert Restaino, who sent 46 defendants in domestic violence cases to jail after a cell phone (yes, a cell phone, not a gun, not a bomb, but a cell phone) went off in Restaino's court room. As this piece from the New York Law Journal reports, on the morning of March 11, 2005, Restaino was presiding over a slate of domestic violence cases when he heard the cell phone ring. When the owner of the phone failed to identify himself and turn over the phone, Restaino advised that “every single person is going to jail in this courtroom." And true to his word, Restaino committed 46 defendants to custody. (For further detail on the incident, see the Report of the Commission on Judicial Conduct.)

Not surprisingly, a complaint was filed against the judge for his action. And earlier this month, the Commission on Judicial Conduct recommended removal of the judge from the bench. Here's how the Commission characterized the judge's conduct:

In an egregious and unprecedented abuse of judicial power, respondent committed 46 defendants into police custody in a bizarre, unsuccessful effort to discover the owner of a ringing cell phone in the courtroom. In doing so, he inexplicably persisted in his conduct over some two hours, questioning the defendants individually about the phone before committing them into custody, and ignoring the pleas of numerous defendants who protested that his conduct was unfair and pleaded that he reconsider. Respondent’s conduct, which resulted in the unjustified detention of the defendants for several hours and the incarceration of 14 defendants in the County Jail, caused irreparable damage to public confidence in the fair and proper administration of justice in his court....
It is sad and ironic that even as respondent was scolding the defendants for their behavior, in a court where trust and personal accountability were of paramount importance, respondent’s own irresponsible behavior provided a poor example of such attributes. His conduct was injurious not only to the defendants themselves, but to the public as a whole, who expect every judge to act in a manner that reflects respect for the law the judge is duty-bound to administer. It is also ironic that in repeatedly berating the “selfish” and “self-absorbed” individual who “put their interests above everybody else’s” and “[doesn’t] care what happens to anybody,” respondent failed to recognize that he was describing himself.

In light of the circumstances, the Commission found no mitigating circumstances that would excuse the conduct, and recommended removal of Restaino from the bench.

Raoul Felder, chair of the Commission, dissented as to the sanction. In essence, he concluded that "one bizarre incident" of misconduct did not justify the destruction of Restaino's career. According to Felder's dissent, the judge was a "decent, humble dedicated individual who is well-liked and respected" and who "built an exemplary career in public service" after growing up in public housing.

Personally, I don't agree with Felder. Here, the judge's conduct caused harm to defendants who unjustly spent time in jail because they showed up in court as required by law. I can't even imagine the chilling effect that Restaino's conduct will have on other defendants, who are already squeamish or fearful about showing up for court. Still, Felder's dissent must be viewed in context; apparently, the Commission's only choices are censure or removal. As Felder explained:

I would have preferred to vote for a more serious penalty than censure, but a lesser one than removal; however, none is available. This speaks for the value of the Commission having the ability to vote to suspend a judge without pay, as a penalty that would be in severity between censure and removal. In my view this case would have easily fallen into such a category.

Some other bloggers have weighed in with their views. TChris on Talk Left says:

A judge who thinks mass jailings are the best way to respond to his own irritation -- without probable cause or even an individualized suspicion that each of the 46 detainees had done something wrong -- deserves to lose his job. Thankfully, Restaino lost his.

And Scott Greenfield offers some background on Chairman Felder, who apparently harbors a soft spot for judges who engage in misconduct.

But getting back to my original question: are small-time judges more likely to abuse their power than those who play in the big leagues, such as those who sit on federal courts? And if so, why?

November 27, 2007

Law Firms Fall Prey to Scam

Guess who's getting suckered by one of the latest e-mail scams? Law firms, particularly those that concentrate in debt collection. So says Sheryl Harris, columnist for The Plain Dealer in Cleveland, who reports that law firms across the country have lost hundreds of thousands of dollars apiece in the scam. This one comes not from wealthy Nigerians needing to shelter their fortunes, but from Asian companies seeking a law firm to collect delinquent U.S. accounts. Harris explains:

Once the parties sign a retainer agreement, the company forwards a check allegedly from a past-due account. It asks the law firm to process the check, since it's handling all the company's U.S. accounts.

After the firm deposits the check, it deducts its fee and wires the remainder to the Far East. Then the check is discovered to be counterfeit.

The firm is left on the hook to the bank for the money it spent from the account.

An FBI spokesperson tells Harris that law firms, including one in Ohio, have lost from $100,000 to $500,000 each through the scam. While the initial contacts sometimes come via e-mail, the scammers also use regular mail. And they've done their homework, appearing to know something about the firm or its clients. So before accepting that overseas client, do your homework too.

The The National Law Journal reports this week on Columbia Law School Professor William Simon's article criticizing three prominent legal-ethics professors for giving bad legal advice with potentially large public consequences. While the NLJ report has rekindled discussion of the article, legal bloggers had already been debating its merits for several weeks. In the article, The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example (also here on SSRN), Simon postulates that clients sometimes want bad legal advice and lawyers sometimes oblige. Consider the lawyers who advised Enron that various asset transfers represented "true sales." Why would clients want bad advice? Because it provides a degree of immunity, either from public authority or public opinion.

The scenario becomes more complicated, Simon says, when the advice giver is an academic, purporting to speak disinterestedly -- as an expert witness, for example -- in order to influence public conduct or attitudes. To illustrate his point, Simon hones in on a case in which three prominent academics -- University of Pennsylvania Law School professor Geoffrey Hazard, Fordham University School of Law professor Bruce Green and Hofstra University School of Law professor Roy Simon -- gave what he labels "quasi-third-party advice" with the real but unstated purpose of giving an imprimatur of approval to questionable lawyer practices in settling a major employment discrimination lawsuit against Nextel.

Brian Leiter first blogged about Simon's article on Nov. 9, calling it The Blockbuster Legal Ethics Article of the Year. That brought two critiques of Simon's article at Legal Ethics Forum. The first, posted Nov. 12 by Suffolk Law's Andrew M. Perlman, raised concern about Simon's own lack of transparency in criticizing the lack of transparency in others. "It turns out that Professor Simon was an informal consultant for the plaintiffs' counsel in some of the underlying cases," Perlman writes, "a fact that Professor Simon only acknowledges in footnote 60." The next day, in a lengthy critique, John Steele, a lecturer in legal ethics at UC Berkeley and Santa Clara University, says that Simon's article "disappoints" and "his thesis needs a complete rethinking if not an outright rejection." On Nov. 15, Legal Ethics Forum gave Simon his say, publishing his reply to Perlman and Steele. The extent to which his own role in the case influenced his article is exaggerated, he says, adding, "I'm concerned that the tendency of their arguments is to make it too difficult to criticize professional conduct of public significance when a powerful party wants secrecy."
All of this makes for audible and fascinating blawgosphere buzz.

The NLJ's spotlight on Simon's article this week is sure to bring about a new round of discussions among legal bloggers and legal academics. NLJ reporter Leigh Jones' attempts to elicit comments from the three professors targeted by Simon succeeded with only one. Roy Simon told Jones: "It's easy to take a personal attack and lash out at the person who made it. The last thing I want to do is get into a fight."

There is trouble in River City, with a capital "T" and that rhymes with "C," and that stands for Criminal History. Actually, it's Iowa City, home of The University of Iowa College of Law. The student newspaper there, The Daily Iowan, is reporting that the law school is having a major problem with students failing to disclose their arrest records on their law school applications. "UI history Professor Jeffrey Cox, a former UI Faculty Senate president, said students with arrest records is a major problem at the UI."

The students "are often vague, forgetful or dishonest about their criminal background on their applications," said the school's assistant dean of admissions, Collins Byrd. In light of this, the school has created a sort of amnesty program, "to allow these admitted students another opportunity to explain their records during the first weeks of law school." In the three years he has been at the school, Byrd has seen as many as 40 students show up at the beginning of the semester to confess their past sins, out of a class of roughly 200. That means 20 percent of the incoming students "forgot" to mention their prior arrests.

The school sees this as a service to its students, given that any criminal records will come out when the students graduate and apply for admission to the bar. And not once has the school dismissed a student for these recovered memories. "The majority of offenses are alcohol-related," Byrd said. "If they explain their situation, say they have learned from it and understand why it was wrong, we are forgiving."

As Prof. Harold Hill might have said, "The sadder-but-wiser student's the student for me."

Striking Hollywood writers were back at the bargaining table yesterday for the first time since going out on strike three weeks ago, and at the helm of the negotiations on their behalf was a lawyer, Patric Verrone. But Verrone is there not as a legal adviser, but as one of the writers -- one who happens to be in his second term as president of the Writers Guild of America West.

While Verrone started out as a lawyer, he quickly thought better of it. Upon his graduation from Boston College Law School (my alma mater) in 1984, he headed south to Fort Myers, Fla., to practice real-estate and estate-planning law as a junior associate with a firm there. After barely a year, he took a three-month sabbatical from the firm and went to Los Angeles, never to return. He followed in the footsteps of friends from his undergraduate time as co-editor of the Harvard Lampoon. In the more than two decades since, Verrone has made his living as a writer and producer, primarily of animated shows including "Rugrats," "Futurama," "The Simpsons," "Class of 3000" and "Pinky and the Brain." It appears to have been a good move. As a Boston College profile this week says, his programs have received numerous honors, including two Emmys. In 2002, the WGA gave him its Lifetime Achievement Award in animation writing.

His dual lives as president of the Writers Guild and writer of children's television provide comic incongruity that is not lost on Verrone, the BC profile says. In a speech last year to the FCC, he began, "I will comment on a subject of vital importance to our industry, to our democracy, and to our free speech. And then I will return to my profession writing a cartoon about a crab monster from outer space."

By the way, Verrone did not abandon law practice altogether. According to this Law Blog post from Nov. 6 and the Wall Street Journal story it quotes, Verrone, out of work during the last writers' strike in 1988, took the California bar exam and later volunteered with the Los Angeles
County Bar Association.

As Kerr describes, a reader at his site posted a comment that Kerr's links to copyright-protected YouTube videos "violate copyright law; are hypocritical; undermine the credibility of the blog; and even undermine our commitment to the United States Constitution." The commenter also argued that as a practical matter (if not a legal one), Kerr was effectively immunized from suit because "it's much too expensive to litigate against a bunch of lawyers."

Kerr asks whether his commenter is correct in claiming that he is guilty of copyright infringement by linking to protected videos, or that he's a hypocrite by trying to profit from these copyrighted materials. And by violating copyright law, is Kerr undermining his commitment to the United States Constitution?

Kerr patiently examines the substance of each of the charges; visit his post for his full analysis. Ultimately, Kerr concludes that his links to YouTube aren't "materially contributing" to infringement (since the videos are widely known to the public via their publication on YouTube) and in any event, he lacks the knowledge required for contributory infringement. And Kerr also explains that compliance with copyright law doesn't raise any constitutional questions either.

Though Kerr acquits himself with his analysis, I wonder whether other law professors, or lawyers for that matter, will have the stomach to take on criticism from commenters. After all, isn't it much easier or safer to simply delete critical comments, or refrain from the kind of provocative analysis that might generate negative or unflattering commentary to begin with? By responding to the commenter's post, Kerr will forever link his name in the search engines to "copyright violations," perhaps causing some residual (albeit superficial) damage to his reputation. And yet at the same time, by responding to the commeter, Kerr has educated the public about what copyright violations and the standard for proving them. Isn't that exactly what law professors, and lawyers generally are supposed to do?

With so many lawyers running for president, there's a natural curiosity about their choices for legal advisers. Slate's Emily Bazelon posed that question to the lawyer-candidates (plus non-lawyer John McCain) and reports on the responses here. (H/T to ABA News which offers a summary list.) Bazelon noticed that "Republican campaigns like talk about legal advisers more than Democratic ones," and provided comprehensive lists of lawyers and law professors. To me, the Republicans' preparation seems like a bit of role reversal given that generally, Republicans seem less hospitable to lawyers than Democrats. John Edwards' opponents routinely denigrate him as a slick trial lawyer beholden to the interests of other trial lawyers, while Hillary Clinton is often critiqued for sounding too lawyerly.

In addition to inquiring about their legal teams, Bazelon also asked candidates about their LSATs. Here, Republican and Democrat candidates all took the same position: no comment.

Blawg Review #136 is out, this time hosted at Australian law blogger Peter Black's Freedom to Differ. This week's Blawg Review contains a bunch of different posts from a bunch of different locations: Australia, law schools and law firms. Blawg Review #136 offers a quick way to catch up on your favorite posts from around the world [wide web], so don't miss it.

While judges spend their lives writing opinions, they rarely offer an opinion on a question that matters most to lawyers: What's the most effective way to present a client's case? Until now. As Tony Mauro writes here, Justice Scalia has teamed up with writing guru, Bryan Garner to co-author a book on the art of persuading judges, both orally and through written briefs. The pair started work on the book last summer, and recently spent four days working side by side in Scalia's office, writing and rewriting chapters.

I'm eager to read the book when it comes out. Given that Scalia's opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I'm particularly curious about the advice that he'll provide to lawyers. Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions? Will Scalia offer "real life examples" of legal briefs or arguments that don't simply don't work, and if so, will readers be able to recognize the lawyers whose work is critiqued in the book? Stay tuned...

Thomas Hobbes' conception of the original condition of mankind: nasty, brutish and short. As this article from Hartford Business (11/26/07) describes, turnover is quick for legal marketers, with most barely lasting two years. Moreover, there's often constant tension between lawyers and marketers, with the former often resisting or undervaluing the advice of the latter.

What explains the short life span? First, as just mentioned, marketers and law firm partners often don't understand each other. Marketers may have bold ideas for marketing, which may not comply with ethics regulations, while many lawyers don't understand how to make business decisions or take direction from marketing staff.

Larry Bodine of Legal Marketing Blog, who's quoted in the article, offers his perspective on why marketers don't last long:

One major issue: The highest tier of law firms isn’t always static, as some have a revolving system that puts new partners in charge every few years. When that happens, once-favored staff members -- including marketers -- might have to start packing their bags. “You instantly go from being a movie star to being deadwood in one day. And that happens to a lot of chief marketing officers,” he said.

Is the short life span of law firm marketers unique? Do marketers in other industries also have short tenures as well?

November 21, 2007

A Personal Perspective on Paulose

As Orin Kerr observed at The Volokh Conspiracy, "That was fast." No sooner was Michael Mukasey confirmed as attorney general than the Justice Department announced the departure of Minnesota's controversial U.S. Attorney Rachel K. Paulose, who will return to Washington to work in the department's headquarters there.
Bloggers are sure to dissect this development in depth, but in a lengthy post at Minnesota Lawyer Blog, Mark Cohen, editor of Minnesota Lawyer newspaper, offers a personal perspective on Paulose's controversial tenure as U.S. attorney, one colored by his having met and come to know her.

She was, Cohen says, "neither the Wicked Witch of the West that some of her detractors made her out to be nor the 'St. Rachel' of some conservative blogs." He writes:

I found Paulose to be a highly driven and even at times charming individual who also is a fallible human being. She is definitely conservative, but not very political. (Ironically, had she cared more about politics, she might have been able to rally some political support when she needed it so badly.) She is a brilliant woman with encyclopedic knowledge. Most surprising of all was the fact that Paulose has a keen sense of humor –- albeit a wryly dry one.

But her subordinates apparently never saw this side of her, Cohen notes, in part because of her poorly developed management skills that caused her to come across as aloof and condescending and "busy being defensive." Yet despite the controversy that surrounded her, Paulose's tenure was not without achievement, believes Cohen (who was an associate of mine many years ago at Lawyers Weekly newspaper in Boston).

Despite the internal problems, the office did some great work in investigating and prosecuting child-porn and human trafficking cases. I would not have that forgotten due to the recent turbulence. Minnesotans can truly be grateful to Paulose and the entire staff of the U.S. Attorney’s Office for their Herculean efforts in those areas. It’s a legacy worth having.

In a post here on Nov. 9, I noted that Merck & Co., after long insisting it would never settle the
27,000 Vioxx cases filed against it, turned an about face and agreed to a global
settlement in which it will pay $4.85 billion to resolve the bulk of these
cases. Yesterday, J. Craig Williams and I had a conversation with two of the lawyers who were instrumental in bringing this about. You can hear that conversation in the latest episode of our legal-affairs podcast Lawyer2Lawyer.
Williams and I discuss the terms of the settlement and its implications with our guests:

With word that the U.S. Supreme Court may decide the right of citizens to arm themselves, an unlikely alliance is hoping to push through a constitutional amendment that would extend the same right to farm animals -- in particular, turkeys. The animal rights organization People for the Ethical Treatment of Animals has teamed up with the National Rifle Association to urge adoption of a law that would give winged and hooved animals the right to bear arms for their own protection and sport.

"Turkeys live in daily fear for their lives," explained animal-rights activist Paul P. Love. "We talk about free range, but most of these animals are afraid to step outside their shelters."

NRA spokesperson Ivanna Glock offered a slightly different reason for her support of the amendment. "Gun-toting turkeys -- bring 'em on! Let's make hunting a more equal test of wits, not weapons."

In a surprising turn of events, the nation's entertainment industry has come out strongly in support of the proposal to allow animals to bear arms. "This would end the writers' strike in a heartbeat," said a high-ranking industry executive who asked not to be named. "Animals armed with AK-47s would offer so much comic potential, the writers wouldn't be able to resist coming back to work."

Just one presidential candidate has taken a position on the proposal so far: Democratic hopeful Dennis Kucinich. While he generally favors strong gun control laws, his campaign office said, his interest in protecting the welfare of animals would lead him to support a modified amendment. Under the Kucinich plan, animals could obtain weapons only after undergoing extensive barnyard checks and talon-printing.

Opposition to the amendment comes from the National Association of Agricultural Lawyers, which cites the proposal's potential for causing injury to farmers and the possibility of internecine battles among livestock. "You try milking a bovine with a Beretta," said association president Bob Blacksheep.

Advocates are hoping to push through the amendment before next year's holiday season, said activist Love. "Let our elected officials prove that when it comes to animal rights, they're not just a bunch of turkeys -- oops, I mean jerks."

Enjoy the Thanksgiving holiday, because no doubt you'll wake up early Friday morning to get a head start on shopping for all the lawyers on your holiday gift list. But what to get your favored members of the bar? Two legal bloggers have some suggestions for you.

First off is Reid Trautz of Reid My Blog!, whose third annual gift guide is beginning to become a holiday tradition. He does it, Trautz says, as "a public service for my learned professional colleagues and their time-sensitive, gift idea-starved family, friends, partners, associates and, dare I say, appreciative clients?" (Are you listening, appreciative clients?) His recommendations range from the predictable -- yes, yes, we all want an iPhone -- to items we never knew about but definitely need. In the latter category: the sonic alarm grenade for waking sleeping teenagers, the animatronic singing Elvis and the Buddha Board for the type-A lawyers on your list. Others are more practical but equally desired: the Garmin GPS, which can not only guide you to the courthouse but, as Trautz notes, save your marriage; and WildCharge, the first wireless charging system for hand-held devices. And then there's the gift I just can't reach a verdict on: Dough-Nu-Matic, the counter-top mini-donut maker sure to blow every lawyer's New Year's resolution.

If the lawyer on your gift list happens to practice in the field of patent law, then consider the holiday gift guide for patent attorneys compiled by Dennis Crouch at his blog Patently-O. As a patent lawyer, Crouch can't help but favor his inner geek in drawing up his list. Thus, his top recommendation is the Roomba robotic vacuum cleaner. "Even a patent attorney can handle this vacuum," he explains. Crouch concurs with Trautz in recommending a Garmin GPS, and like Trautz he sees a marriage-saving role for the hand-held Garmin Nuvi 260 -- he's getting one for his mother-in-law. (Let's hope she doesn't read his blog). Crouch favors an iPod Nano over an iPhone, and even offers some geeky attire: the reverse engineer T-shirt and a blue Oxford shirt (wrinkle-free and stain resistant, of course). But the most priceless item on his wish list: "New management at the PTO, more technically-trained federal judges, and a Congress that is not for sale." Good luck with that last one.

November 20, 2007

Lawyer Imposters Infiltrate Campaigns

Today's news brought tales of two lawyer-imposters with political ties on both sides of the aisle. In Florida, Robert Charles Jones Brady, a twenty-something without a college degree who moved in top Republican circles, was charged with a scheme to defraud and six counts of unlicensed practice of law, according to this article in the Sun-Sentinel(11/20/07). Brady bilked at least $50,000 from individuals, including a prominent cardiologist, who retained him for matters such as land use and zoning. In fact, one of Brady's clients introduced him as an attorney to presidential candidate Fred Thompson, who fortunately, is already lawyered up.

Meanwhile, the Democrats aren't immune from fake lawyers either. The Associated Press reports that Mauricio Celis, a Democratic campaign donor in Texas was released on $50,000 bail, after being indicted for impersonating a lawyer. Celis has a controlling interest in a Corpus Christi law firm, in violation of Texas law which prohibits non-lawyers from holding a stake in a law firm. Celis has contributed thousands of dollars to political candidates including Hillary Clinton's presidential campaign.

These two incidents prove what we already know about politics: so many of the players are phony, even the lawyers.

In a discussion of the National Jurist study , Debra Cassens Weiss at ABA Journal News describes:

The top factors named by law students were quality of teaching, bar passage rate, placement rate at nine months, practical skills training and faculty-student relations. But U.S. News doesn’t consider quality of teaching, practical skills training or faculty-student relations, while bar passage rate and placement have low importance in the U.S. News rankings. In U.S. News, reputation among law professors and deans accounts for 25 percent of a law school’s rank, while reputation by judges and lawyers accounts for 15 percent. That is followed by placement rate at nine months after graduation (14 percent), median LSAT scores (12.5 percent) and undergrad GPA (10 percent).

Bloggers have had plenty to say about the mismatch between student demands on the one hand, and law school rankings on the other. At How to Build A Solo Practice, Susan Cartier Liebel isn't surprised that law school rankings don't reflect student desires. In Cartier Liebel's view, the omission explains why law schools don't offer more practical training or management classes: because these courses won't elevate a law school's rating, whereas the GPA of an entering class or the school's reputation among other judges and lawyers matter significantly. Cartier Liebel recommends that law schools pay attention to paying customers, the students:

Create an educational experience comprised of doctrinal and practical skills classes in proper balance and at a fair price. This school would have so many high caliber students they wouldn't have to artificially decrease the admitting class size to raise entering students' G.P.A.'s. Or produce fewer graduates to have what appears then to be a higher placement statistic. The employers at their job fairs would actually want them and not dread another graduating class who know very little. Whether looking to be employed by another or to strike out on their own, these students would be well prepared and a credit to the profession.

Scott Greenfield at Simple Justice agrees that law school education needs to change, and focus on what ought to be its mission: preparing students to become lawyers. Greenfield envisions "Scott's Law School," where law professors are forbidden to publish in law reviews since according to Greenfield, no one except other law professors read them (actually, perusing recent law reviews is one of my guilty pleasures while I'm at the law library). And students would learn practical skills such as dealing with clients, judges and adversaries. Chuck Newton, the Third Wave Lawyer also endorses a move towards more practical education here and describes a program at Detroit Mercy that is doing just that.

I haven't found much discussion of this issue at law professor blogs (give a holler in the comments if I missed you!). However, one commenter at Tax Prof Blog wonders whether law student are sufficiently qualified to evaluate the quality of a law school, or to know what aspects of legal education are important. I'm in agreement here, as well. Though I believe that students should have access to practical courses, in my view, the most important skills that law school teaches are (1) writing ability and (2) analytical thinking. These skills, particularly good writing, are virtually impossible to develop on the job simply because they take time and practice to perfect. Yet "legal writing" isn't a very sexy skill; I can't see law students ever demanding more legal writing courses -- though many, myself included, appreciate the value of writing ability once in practice.

Finally, as much as our legal education system needs reform, believe it or not, there are some who look to our legal education system as a model. Consider this opinion piece from the Korea Times (11/20/07) commenting on the dismal legal education system in Korea:

Generally speaking, U.S. law practice is significantly more developed and sophisticated ... U.S. lawyers are expected and trained to think three, four steps ahead and be proactive ... The chances are average local Korean practitioners or even the relatively good ones will not be able to meet the high expectations of a U.S. client.'' [from Chun Y. Yang, a Korean practitioner] President Roh Moo-hyun and the National Assembly know there is a problem. The Law School Bill states, "Under the current system to nurture legal professionals, a gap exists between legal education and legal practices. Also the current system does not sufficiently nurture legal professionals who have expertise in preventing and addressing legal disputes. Therefore, the purpose of this amendment is to provide legal services which meet citizens' various needs by introducing a U.S.-style law school system.''

The article recommends that law professors "stop lecturing and focus on nurturing critical thinking and logical reasoning skills by engaging students" through methods like the Socratic method.

Bottom line: while legal education in the U.S. may have its problems, it could be much worse. Is that why it hasn't yet changed?

Feast and Famine at Law Firms: Bonuses Up, But So Is The Likelihood of Layoffs

'Tis a season for feast and famine at law firms, particularly those that feed off business from structured finance, equity transactions and M&A (mergers and acquisitions) work. On the one hand, the market slowdown that we blogged about back in August is now impacting law firms, which are tightening their belts as reported by Bloomberg. (11/20/07). Though to date, only Clifford Chance has laid off any associates (six), Thacher Proffitt & Wood has reassigned a dozen associates to other departments. And one firm, McKee Nelson has offered associates financial incentives to either voluntarily leave the firm or take a year-long sabbatical. (For more on the McKee Nelson option, see this post at my other blog My Shingle.)

But the situation isn't all doom and gloom for associates just yet. Bloomberg reports that law firms are handing out huge bonuses; some as large as $115,000 for work done over the past year. And news of bonus announcements keeps coming in at Above the Law's 2007 Associate Bonus Watch.

According to Bloomberg, firms have, thus far, avoided the mass layoffs of 2001 that followed the dot-com bubble burst and 9/11 simply in part, because they engaged in balanced growth and did not over-hire. That's one factor; but in my view, the rise of blogs like Above the Law, which closely monitor law firm business, have also played a role in deterring layoffs, except as an absolute last resort. Right now, I'm guessing that no law firm wants to publicly flaunt its weakness by being first to fire associates.

Still, if the economy continues to slump, I have no doubt that firms will resort to layoffs to protect the sacred PPP (profits per partner). The question is whether we'll see kindler, gentler reductions such as those put in place by McKee Nelson, or mass layoffs, where firms spin terminations as a way of getting rid of less-talented associates, rather than economic necessity. What are your thoughts?

November 19, 2007

Déjà Vu All Over Again at FBI Lab

I expected to find the blawgosphere abuzz this morning over yesterday's joint investigative report by 60 Minutes and The Washington Post revealing that hundreds of defendants remain incarcerated even though their convictions came about with the help of a discredited FBI forensic tool known as comparative bullet-lead analysis. Even though the FBI discarded the test two years ago as having no scientific validity, it never notified the affected defendants or courts. As I write this, response so far among legal bloggers has been muted, but it is still early the morning after the 60 Minutes broadcast.

One blogger who has commented is Andrew Cohen, author of the Washington Post blog Bench Conference. It is déjà vu all over again, Cohen suggests, conjuring up the memory of FBI whistleblower Frederick Whitehurst, who a decade ago identified systemic problems within the FBI crime lab and helped expose the agency's cover-up when cornered. "Somewhere, Frederick Whitehurst is saying: See? I told you so," Cohen writes. And he could not be more prescient, because Whitehurst's Forensic Justice Project put out a statement this morning saying, in so many words, We told you so. The statement indicates -- and the Washington Post report confirms -- that the work of the project and of the affiliated National Whistleblower Center helped expose the weaknesses in bullet-lead analysis. For Cohen, there is a lesson in all this that Whitehurst might well agree with:

Remember this story -- and the ones like Whitehurst's that have preceded it -- the next time government lawyers stand up in court and vouch for the accuracy and reliability of federal 'experts' offering conclusions about the import of evidence. Remember it, too, when a Justice Department lawyer tells a federal judge that the executive branch is worthy of trust and deference in the legal war on terrorism because law enforcement officials have deemed someone to be a terror suspect.

Another blogger to comment on the report is Mark Obbie at LawBeat. Obbie dons his journalism-professor hat to find fault with the over-hyping of the Washington Post piece written by reporter John Solomon. The story, says Obbie, "suffers from excessive hype" and left him "feeling I was hoodwinked." The trouble comes, in part, from the FBI's preemptive strike: It released a statement on Friday promising to do everything the report on Sunday would criticize it for failing to do. "Solomon's revelation of this 'problem-solved' turn in his story comes too late, in the 13th graf, after 12 grafs that seem to say the problem persists and is being addressed for the first time publicly in this story," Obbie complains. Another problem: It is not until the 21st paragraph that the piece mentions the role of the Forensic Justice Project in exposing this injustice. "The chest-thumping tone of the report suggests a level of originality that, it turns out, is lacking," he says.

One footnote to the story, on this very day that The American Lawyer publishes its Summer Associates Survey, is that four summer associates at Skadden, Arps, Slate, Meagher & Flom in New York played a central role in helping compile this report. The Post and 60 Minutes conducted a nationwide review of cases in which this tainted evidence played a role. As part of that review, the four associates picked through electronic court filings in search of cases.

Summer associates gave their firms overall good reviews in The American Lawyer's 2007 Summer Associates Survey, and why shouldn't they? After all, what's not to like? Some found exotic adventures abroad, with one traveling four-and-a-half hours by horseback across the Egyptian desert and another put up in a fancy apartment in Paris. Others were treated to skyboxes at baseball games, cooking classes, musicals, symphony concerts, whitewater rafting trips and scavenger hunts. In New York, there was Kobe beef and Picasso at the Museum of Modern Art, while in San Francisco there was helicoptering under the Golden Gate Bridge and debauchery at Half Moon Bay. All that and a paycheck of nearly $3,000 a week.

Not bad work if you can get it. And of the 10,000 law students who did get it, 7,300 responded to the AmLaw survey. Those at smaller firms were generally happier than those at larger firms, but almost all the firms scored at least a four on a scale of one to five, with the average score for all firms 4.513. The top-scoring firm was Boston's 155-lawyer Nutter McClennen & Fish, which earned perfect scores in eight of nine categories. The second-ranked firm, Philadelphia's Fox Rothschild, jumped from a rank of 110 the year before.

What made the difference in firms? "Students craved juicy assignments, friendly offices and lots of attention, and the firms that best satisfied these needs tended to be medium-size shops with relatively small summer programs," writes reporter Paul Jaskunas. One summer associate at Nutter summed up the experience this way: "They go out of their way to make you feel like a part of the family from day one."
By contrast, firms that ranked lower on the survey got there because their associates felt neglected. All but one of the 10 lowest-ranked firms scored below 4.0 in training and guidance. "Give the summer associates more real work! I want to write motions, not just research motions," pleaded one associate. Just don't let up on the Kobe and debauchery.

In 1957, President Dwight D. Eisenhower proclaimed Nov. 19 to be Equal Opportunity Day, urging every American to join "in the effort to abolish all artificial discrimination." These 50 years later, what is Eisenhower's legacy in promoting equal opportunity? For Blawg Review #135, Jillian Todd Weiss takes the measure of that question by turning to the blawgosphere. Weiss, author of the blog Transgender Workplace Diversity and associate professor of law and society at Ramapo College, finds that equal opportunity in the U.S. remains elusive. The racial divide remains strong and debate over how to bridge it remains inconclusive, she writes, while the movement for equal opportunity has expanded beyond race, as is illustrated by recent attempts to expand civil rights to gay, lesbian, bisexual and transgender people.

Two weeks ago, the House took up the Employment Non-Discrimination Act, which was introduced to prohibit employment discrimination based on sexual orientation or gender identity. ... Some Democrats, just like those of Eisenhower's day, complained that they were not prepared to support the reference to 'gender identity,' which would have protected transgender Americans, and the bill was passed without it. This move was controversial in the gay community because many gay advocates felt that transgender people are not part of the gay community. ... On the other hand, about 300 organizations protested the removal of 'gender identity' from the bill because it undermined the fairness message of ENDA.

In her survey of the blawgosphere, Weiss found plenty of discussion of other issues related to equal opportunity, including age discrimination, disability discrimination, sex discrimination and veterans' rights. A second part of Blawg Review is slated to continue tomorrow, the 9th annual Transgender Day of Remembrance, at the Rainbow Law Center Blog of Denise Brogan-Kator.

Until this month, lawyers over age 45 could not be newly enrolled to practice as advocates in the Indian state of Delhi. The policy existed, one member of the Delhi Bar Council explained, because, "We have often seen that lawyers above 45 just get into the profession for time pass. They don't contribute anything, engage in malpractice and crowd in." Some post-45 "senior citizen" lawyers disagreed with that policy. Six months ago, a half dozen of them appealed to the Delhi High Court. Earlier this month, before the court could rule, the Delhi Bar Council reversed itself and abolished the age restriction.

As NDTV reports, this is welcome news for lawyers Prem Chand Kashyap, 60, and Sudhi Kumar Bharadwaj, 61. Kashyap, a 1975 law graduate, retired this year after 35 years in banking and hoped to spend his "golden years" as a lawyer. Bharadwaj had earned his law degree in 1979 and retired last year as chief income tax commissioner of Mumbai, likewise wanting to practice law. The Bar Council had turned down both men because of their age.

Read more on this from The Hindu or watch this video of NDTV's report. Meanwhile, I'll ponder the demise of the belief that with age comes wisdom.

November 16, 2007

Income Gap For Women Persists At Large Firms... Will It Change?

A recent survey by the National Association of Women Lawyers (NAWL) found that the income gap between male and female lawyers at firms continues to grow, as reported in this post at the ABA Journal. This press release issued by NAWL summarizes the survey's results, which showed that male equity partners earn almost $90,000 more than female equity partners, that women account for only one in six of all equity partners (who enjoy the most prestige and power at firms) and that fewer than ten percent of law firm managing partners are women. The press release also notes that women are not advancing into more senior positions even as they become more profitable.

Unfortunately, the survey doesn't provide additional information on why female equity partners earn less than men. Is it because they originate less business than men (in which case perpetual origination fees may create a bias)? Do women earn less because they hold less seniority in their equity positions and are thus penalized by existing formulas for distributing profits? Or are law firms simply paying women less -- and because they are underrepresented in firm leadership, there's nothing they can do about it?

The reason for the gap is important. If women are generating less business than men, then the solution is for women to focus on rainmaking so that they can increase their income, as well as their power and prestige within their firms. And coincidentally, this month's issue of Originate, contains some excellent business development advice for female lawyers from Pamela Roberts, chair of the ABA Commission on Women. Roberts targets her marketing efforts at activities that help her create and build relationships with other lawyers. For Roberts, what works is involvement in the ABA, taking advantage of speaking engagements, building a niche and participating in civic activities, where she generates referrals from members of the Board. At the end of the article, there's a comprehensive checklist to help other female lawyers identify marketing opportunities that will work for them.

As we all know, nothing speaks as loudly at law firms as money. When women start finding ways to make rain as effectively as men, the income gap will evaporate -- or perhaps even change direction, to put women on the higher end.

Martha Stewart, indicted for (or in Libby's or Stewart's case) convicted of, charges arising out of the investigation of the "sexier" crime for which they ultimately were not charged. In Libby's case, he was convicted for perjury before a grand jury, not revealing CIA agent Valerie Plame's identity; in Stewart's case, she was convicted for obstruction of justice, not insider trading; and now, Bonds has been indicted for perjury, and not illegal use of narcotics or steroids. (For a round up of news stories on the Bonds' indictment, see How Appealing.)

Though perjury sounds trivial, particularly in comparison to the more serious charge of illegal drug use, the Bonds indictment generated plenty of analysis in the blogosphere. Peter Henning highlights some of the more interesting aspects of the Bonds investigation at White Collar Crime Prof Blog. Henning anticipates that as an initial strategy, Bonds' lawyers will raise a "literal truth defense," and argue that Bonds' responses to questions about steroid use were not lies, but were either literally truthful, or unintentionally misleading due to confusion about the particular question. Prosecutors likely anticipate this defense, because Bonds was also charged with "obstruction of justice" which would capture "evasive or misleading testimony" that might not rise to the level of perjury. Like any good sports fan, Henning considers the odds of plea bargain, which he predicts won't be less than 100-1, given that this case represents Bonds' last chance to preserve his legacy.

For baseball fans who aren't necessarily lawyers, Michael McCann of Sports Law Blog discusses some of the basics of the charges in Sports Illustrated. McCann describes that perjury charges are indeed serious, exposing Bonds to up to 5 years in prison and a $250,000 fine for each of three perjury charges, as well as 10 years and a $250,000 fine for obstruction of justice. And McCann notes that as a first time offender, Bonds would likely receive a lighter sentence.

And speaking of sentences, the media is already soliciting comment from "sentencing expert," Doug Berman of the Sentencing Law Blog. Berman in turn, has asked for help from readers, though he notes that both Libby and Victor Rita (whose case went to the Supreme Court) received 30 and 33 month sentences for perjury, both within applicable sentencing guidelines (though Libby's sentence was commuted). Berman is also receiving some additional attention for his status as a sentencing expert: apparently, these two ESPN sports show hosts want Berman's job!

Last year, I posted here about lawyers filing for, and receiving controversial "tax patents" that would offer protection for tax strategies and force others using those strategies to pay licensing fees to the patent holder. At the time of my post, 49 patents for tax strategies had been issued with numerous others pending. However, some lawyers objected to issuance of such patents as a matter of policy, noting that it would increase the cost of tax advisory services, and further that, “The successful patenting of tax strategies now limits Congress’ ability to shape economic policy through legislation, and places that power in the hands of individual patent holders.”

Apparently, some in Congress are listening. Today, at Tax Prof Blog, Paul Caron writes that Senate Finance Committee Chair Max Baucus and Ranking Member Chuck Grassley introduced legislation yesterday to prohibit the Patent and Trademark Office (PTO) from granting patents for common tax strategies and tax planning inventions. The press release explains that the legislation was motivated by both a desire to "protect taxpayers and tax practitioners from incurring fees when they use routine tax shelters," and to address fears that some tax patent applications are for tax shelters.

The potential for using tax strategy patents as a tax shelter is enough of a concern that the IRS recently issued a notice of proposed rules to require a taxpayer to disclose use of a patented tax planning method, according to Dennis Crouch at Patently-O. As Crouch describes:

The specific rules would require a special disclosure reporting a patent license anytime a taxpayer pays a fee (including indirect consideration) to a patent holder for the legal right to use a tax planning method that the taxpayer “has reason to know” is subject to a patent. A tax planning method is defined as “any plan, strategy, technique, or structure designed to affect Federal income, estate, gift, generation skipping transfer, employment, or excise taxes.” The rule would exclude patents covering tax preparation software or “other tools used to perform or model mathematical calculations or to provide mechanical assistance in the preparation of tax or information returns.” Under the rules, both the licensee and licensor (patent owner) would be required to submit the disclosure reporting the license transaction.

Crouch's post attracted many comments, many of which argue for the elimination of "tax strategy patents" altogether, either because they increase the problem of unlawful "tax shelters" or involve obvious practices which shouldn't qualify for patent protection at all.

Some new stars are emerging as a result of the continuing 2007 Writers Guild Strike: the lawyers. According to this story from the Hollywood Reporter (11/16/07), lawyers representing film and television writers are advising clients on some of the legal issues at the heart of the strike, specifically, whether the writers are entitled to a percentage of revenues that the studios derive from making content available on the Internet.

As it persists, the strike continues to generate new legal questions, including (from the article):

Is writing for the Internet permissible during a strike? What are showrunners' rights and obligations to struck companies? Is there a "correct" choice when a writer receives two letters, one from the WGA demanding that he turn over all unproduced material that has been shopped or purchased by a studio, and another from the studio saying that to do so would put the writer in breach of contract and subject him to a lawsuit?

With few clear-cut guidelines, some lawyers have suggested a compromise, advising their clients to e-mail their scripts to their attorneys. Lawyers would then hold the unproduced material in escrow pending resolution of the strike -- which, hopefully, would serve as an acceptable alternative to requiring writers to turn over their unproduced work to the studios and enable them to avoid the threatened lawsuits.

Meanwhile, Christine Corcos of Media Law Professor Blog reports here that one potential suit has been averted. Corcos explains that the Writers Guild backed down from its original position that would have prevented writers from working on animated films. The Guild's position would have created a conflict with the International Alliance of Theatrical Stage Employees (IATSE), which did not want to see its members out of work.

The strike has also made a star of at least one lawyer-blogger, Jonathan Handel, former associate counsel for the Writers' Guild who runs the Digital Media Blog. Handel's work rocketed his Google search rankings, which in turn lead to exposure in national media, according to the Legal Pad:

Handel has been quoted in The Wall Street Journal and in Associated Press stories that got picked up worldwide. It has done wonders for his Google positioning, [Handel] said. "If you googled my name 10 days ago, you'd find about 300 hits," he said. "Now, if you google my name, there's 18,000 hits from China to Prague." And all that name recognition is good for him and the firm when it comes to attracting potential clients. Already, he's gotten a handful of calls from prospects who have seen his opinions about the strike in the media.

Some lawyers aren't just advising writers on the strike; they're participating in it as well. Remember, Jeremy Blachman, the Harvard law student (he's since passed the bar) of Anonymous Lawyer fame? Now, Blachman's a writer, out on the picket line with his colleagues, as Blachman writes here and here.

Finally, if you're interested in learning more about the legal issues related to the strike, but you don't want to read a complicated analysis, take a look at this highly entertaining video posted most recently at Concurring Opinions.

November 15, 2007

'Ruly' Lawyers Take to Streets

In Washington, D.C., yesterday and New York City and elsewhere Tuesday, lawyers took to the streets, clad in proper courtroom attire, to protest the imposition of martial law in Pakistan and the arrest of thousands of lawyers there. Terry Carter reports in the ABA Journal that the Washington march, organized by the ABA, brought out hundreds of lawyers. Eric Turkewitz of New York Personal Injury Law Blog attended one of two New York rallies Tuesday and says that hundreds of lawyers turned up there. Elsewhere, three-dozen lawyers rallied in Albany, several hundred showed up for a second day of protest in Seattle, 200 showed up for a moment of silence in Raleigh, N.C., and 75 marched in Honolulu.

Not everyone was thrilled with the turnout, however. Blogger David Giacalone writes that he is not impressed yet by U.S. lawyers' efforts. After observing that New York has 147,000 active resident lawyers, many thousands of whom have their offices within a block or two of the Manhattan Supreme Court, he comments:

Well, it appears that fewer than 800 hundred lawyers took part yesterday in the two Pakistan solidarity rallies. Sadly, I do not believe it was because no one knew (did Musharaff jam everyone’s Blackberries and cellphones?) or because the protests were 'splintered.' Everyone just had higher priorities at lunchtime on a lovely autumn day in Manhattan. Seems to me, curiosity alone should have ensured more than a triple-digit body count.

The New York Times put the number of New York protesters at 500 and described them as muffled and docile: "Just a very ruly crowd of lawyers, most of whom were not from Pakistan." Attending the Washington march, ABA Journal reporter Carter describes it also as "ruly" but significant nonetheless, swelling at one point to more than 600 people.
(I am embarrassed to say that I can't tell you how many showed up for the Tuesday rally in Boston because work kept me from attending.)

I am one who criticized these rallies for being splintered, but, unlike Giacalone, I am impressed nevertheless. Would I have liked to see more lawyers show up? Of course. But as the ABA Journal's Carter writes, it is almost unheard of for large groups of lawyers to march in protest of anything. To see hundreds of lawyers turn out in cities across the U.S. is a credit to all lawyers, even those who did not attend. The president of the New York State Bar Association, Kathryn Grant Madigan, put it well when she told the Wall Street Journal,"This is unusual for lawyers, but it’s the essence of what we’re about."

In a post here in August, Crashing the Wexis Gate, I wrote about plans by Carl Malamud and his nonprofit organization Public.Resource.Org to create a public-domain database of all federal case law and eventually all state case law too. That plan took a major step forward yesterday with the announcement of an agreement between Public.Resource.Org and the legal research company Fastcase that will allow Malamud's organization to publish 1.8 million pages of federal case law in the public domain. The archive will become available on the Web sometime in 2008 and will include all U.S. courts of appeals decisions since 1950 and all Supreme Court decisions since 1754. In announcing the agreement, Malamud said:

The U.S. judiciary has allowed their entire work product to be locked up behind a cash register. Law is the operating system of our society and today's agreement means anybody can read the source for a substantial amount of case law that was previously unavailable.

As I wrote yesterday at my LawSites blog, it is notable that this public-domain database will come about with the cooperation of a for-profit legal research company. Fastcase has agreed to sell this case law in a one-time transaction that will allow Public.Resource.Org to use it without restriction. The cases will be marked with a new Creative Commons mark -- CC-Ø -- that signals that there are no copyrights or other related rights attached to the content. The announcement included the teaser that news of further additions to the database, including older appellate cases and trial court decisions, "will be forthcoming."

Predictably, the news raises the question of how public access to case law will affect Westlaw and LexisNexis. Kevin O'Keefe, for one, at his blog, Real Lawyers Have Blogs, asks whether the companies can maintain the status quo and survive. To my mind, it is way too early to write their obituaries. Years ago, both of these companies saw the approach of broad public access to court opinions. In case you haven't noticed, both have been bulking up their content in other areas. Will all information someday be free? Perhaps, but for now Wexis has plenty to sell.

... of Slovenia. By way of the international-law blog Opinio Juris comes word that the man elected president of Slovenia Sunday, Danilo Türk, is also a professor and practitioner of international law. Türk is a professor of international law at the Faculty of Law at Slovenia's University of Ljubljana. From 1992 to 2000, he was his country's ambassador to the U.N. and then spent five years as the U.N.'s assistant secretary-general for political affairs.

Opinio Juris blogger Christopher J. Borgen, associate professor at St. John's University School of Law, writes of Türk's election: "It's good to see nice guys finish first once in a while." In calling Türk a nice guy, Borgen speaks from firsthand experience. In the early '90s, when he was a law student at New York University, Türk was a frequent lecturer there. "Besides being a great teacher," Borgen writes, "he was gracious and helpful."

Lawrence Savell has shed his Santa suit. The New York lawyer who produced and recorded three classic holiday humor albums mocking everything from billable hours to bar exams, has released a new CD that breaks with tradition and abandons the holiday theme for pure rock 'n' roll. (OK, there is one Christmas song, about a lawyer who becomes Santa's G.C.) But in keeping with its forbears, the new release, The LawTunes: Live at Blackacre, offers a line-up of songs that pokes fun at lawyers in a way that only a lawyer could do. Take the song, "(She's An) Electronic Discovery," in which late-night document review uncovers a picture of a particularly fetching employee and spawns an amorous fantasy:

Accessible in her native format
In photographic preservation
No evidence of spoliation.
(She's An) Electronic Discovery
Like an e-mail she sends me
If I meta, then I'd data.

In another "love song" (so to speak), a lawyer turns to his Bluebook after his black book lets him down:

Little Bluebook be my guide
To the source of love denied
As the sole authority
Pinpoint her tonight for me.

Listen closely -- very closely -- and you just might hear echoes of Brian Wilson, the troubled genius of The Beach Boys. How else to explain the copy of Wilson's autobiography nestled among The Bluebook, Black's Law Dictionary and a guitar on the album's cover? Wilson inspired The Beatles, why not Savell too?

Savell writes and records these songs himself in a home studio. You can buy his latest CD and any of his earlier recordings through his LawTunes Web site ($14.95 plus shipping). You can even buy the boxed set of all four Savell CDs, sure to be a collector's item someday.

November 14, 2007

Law Firm Appoints Chief Sustainability Officer

Law firms may not yet have a Chief Happiness Officer, but one law firm, Nixon Peabody, is the first to appoint a Chief Sustainability Officer, according to this news story (11/14/07). Among other responsibilities, the CSO will work with the firm's operations director to develop green initiatives within the company, reduce the company's carbon footprint and start sustainability projects with clients.

The article notes that Carolyn Kaplan, the firm's new CSO "works in Nixon Peabody's office but travels among the company's 17 locations." Perhaps cutting back on inter-office trips and relying on Web technology and other virtual meeting strategies could serve as the firm's first step to reducing its carbon footprints.

Perhaps Pillsbury Winthrop Shaw Pittman needs to reevaluate its system for screening conflicts and disclosing material developments that may impact bankruptcy claims. Back in March, we mentioned that Pillsbury was the subject of a motion filed by the U.S. Trustee to disqualify the firm from representing Sonic Boom and to force it to disgorge fees earned. Now, according to this article, Pillsbury has been accused of another confict. Apparently, Pillsbury failed to disclose an agreement between the firm and directors of its clients, extending the statute of limitations on a potential malpractice claim. Creditors argue that this situation should have been disclosed to the court.

In the first instance, Pillsbury lost the business of representing SonicBlue in the case, and thus its presumable large revenue stream. Now, if the accusation comes to anything, Pillsbury stands to lose money in the form of damages for losses to the corporation due to the directors' actions. Yikes.

It is important for bankruptcy counsel to always bear in mind the competing constituencies involved in every bankruptcy proceeding. What may be a good idea in garden variety civil litigation, may be a devastating decision in the bankruptcy arena. Deals with clients in business litigation such as that between Pillsbury and the SonicBlue board may be perfectly reasonable in most situations, but in bankruptcy, where the interests of creditors are paramount in a debtor-in-possession situation, such a deal undermines the entire process because Pillsbury could not be expected to fully pursue claims against the board if Pillsbury was potentially on the hook for any damages by agreement. Being able to recognize hidden conflicts as well as the obvious ones is essential to a successful bankruptcy practice, as the SonicBlue representation highlights.

If there's anything else that Pillsbury hasn't revealed about this matter, now would seem to be the appropriate time, indeed, the last chance, to disclose it.

As academic blogs proliferate, many practicing lawyers are enjoying the benefits. As Wisconsin lawyer and jury consultant Anne Reed posts at her blog, Deliberations, blogging has provided her with an easy opportunity to participate in conversations with law professors, a chasm never before bridged. From Reed's post:

as far as I can tell [...] blogging has changed the way lawyers and professors talk to each other. Practitioners hear from professors daily, not when the quarterly review comes out. Professors hear from practitioners, instead of just each other. And whenever either side posts, the other side chimes in with comments. It's a discussion.

But could too much flirtation with practicing lawyers endanger a blogging law professor's reputation? In this post, Professor Brian Leiter considers whether blogging helps or hinders a law professor's career. Leiter writes:

Because blogs are easily accessible and thus easier to read in a spare moment than, say, a scholarly article or scholarly book, blogs that purport to treat scholarly topics are far more likely to solidify an impression of a professor's mind and overwhelm the merits of his or her actual publications (assuming the two have different merits). This is why, it seems to me, it is particularly risky for either students or junior faculty to blog much: the first, and perhaps dominant, impression of this person's work is likely to be defined by the blog, whether fairly or not. If you're going to blog on scholarly topics, it had better be good!

While Leiter references at least one professor whose career suffered from too much blogging, he mentions other examples -- such as Orin Kerr and Larry Solum who enhanced their reputations through scholarly blogging. And Leiter also recognizes that his own blogging (in non-academic circles, Leiter is best known for his alternative law school rankings) expanded his opportunities in academia.

Let's hope that Leiter's cautionary words don't put a chill on law professor blogging and end the conversation between lawyers that's just beginning to thrive.

Origination fees are an important motivator, because they give lawyers incentive to generate business for their respective firms. But when origination fees are granted in perpetuity, they can actually depress business development -- a point made by Tom Collins at More Partnership Income, as well as by Larry Bodine at The Law Marketing Blog.

So what's the problem with perpetual origination fees? After all, but for the rainmaker's business, the other firm lawyers would be out of work. Perhaps that's true, which is why rainmakers deserve some compensation. But perpetual origination fees go overboard, with deleterious consequences:

Continuing origination credit bestows territorial ownership. It puts a fence with a non-trespassing sign around a client or a reference source. Doing that impedes business development by getting in the way of cross-selling and team selling. It spells double trouble if the rainmaker has settled into a rocking chair mode, living off of his or her prior accomplishments. It is not unlike the practice of assigning an exclusive territory to a salesperson or dealer in the commercial world. Exclusivity can work if the salesperson is aggressive and effective, but territory sales results go down the tubes if the salesperson becomes ineffective. That happens. It happens for a host of reasons, including changes in the individual’s priorities, sickness, age, or the diminishing marginal attraction of money.

Still, according to a survey of 170 midrange law firms, 81 percent of law firms do not impose a sunset on origination credit. Neither Collins nor Bodine offer any explanation; I can only surmise that the rainmakers who benefit from perpetual origination credit prefer to retain this system, and have sufficient economic leverage to to do so successfully.

And what about origination credit for associates? At Above the Law, David Lat reports that Kramer Levin associates who bring business to the firm receive seven percent of all fees collected, whether or not they're involved in the matter. And in the comment section, many more tipsters chime in about origination credit policies at other firms.

Many lawyers feel trapped in their jobs, or chained to their computers or BlackBerrys. But now, the lawyers and other employees of Indiana law firm, Woods and Woods will, quite literally, discover what it's like to work in a prison cell. That's because the firm recently moved its offices into the old Vanderburgh County Jail, an 1890 building recognized as historic by the Indiana Historical Bureau, as reported by the Associated Press (11/14/07). While the jail has received some minor upgrades, the building still has bars over the windows. And the firm has also retained one of the original cramped jail cells for visitors to view (perhaps the cell offers incentive to the firm's DUI clients to sober up before they wind up in jail themselves).

Ultimately, by "doing time," Woods and Woods has done well for itself. The firm's decision to relocate offices to the jail saved a historic building from destruction. And the firm generated extensive, national publicity as shown by the results of a Google search. Who would have thought that moving to a cell could wind up as great "sell" for a law firm?

November 13, 2007

Court Protects Blogger's Anonymity

The The New York Law Journal reports today that a New York court has refused a petitioner's request to force Google to reveal the identity of an anonymous blogger. The petitioner, Pamela Greenbaum, a school board member in Lawrence, N.Y., brought a pre-action discovery proceeding seeking to force Google to disclose the author of the blog Orthomom, which Google hosts on its Blogger service.
The blog, which covers local issues in the Lawrence area as well as issues relating to Orthodox Judaism, criticized Greenbaum for her opposition to the use of public-school funds for private-school students. In one post alleged to be defamatory, the blogger wrote, "Way [for Greenbaum] to make it clear that you have no interest in helping the private school community."

In a decision issued Oct. 23, Manhattan Supreme Court Judge Marcy Friedman concluded that Greenbaum had not shown that she has a meritorious claim for defamation and therefore is not entitled to disclosure of the blogger's identity. Friedman wrote:

[T]he court ... finds that Orthomom's statements are not reasonably susceptible of a defamatory connotation. Greenbaum's defamation claim against Orthomom reduces to the insupportable assertion that Orthomom implied that Greenbaum is an anti-semite merely because Orthomom disagreed with Greenbaum's position on the use of public funding for a program that could have affected the Orthodox Jewish community.

Because the blogger was expressing her opinion about a fact that was not in dispute, her statement was protected by the First Amendment, the judge said.

One of Orthomom's lawyers, Paul Alan Levy of the Washington, D.C.-based Public Citizen Litigation Group, told the New York Law Journal: "It's clear that the judge in this case relied on the evidence before her. A person doesn't get to identify the alleged wrongdoer without some evidence [of wrongdoing]."

Having been to a demonstration or two in my time, I've learned that two ingredients make a demonstration a success: numbers and unity. The more people who attend and the more unified their voice, the greater the demonstration's impact. Given the obviousness of this, I am frustrated by the splintered way in which bar groups here in the U.S. are attempting to show their support for lawyers in Pakistan.

Last Friday, again today and again tomorrow, lawyers' groups in various cities across the U.S. have staged marches and rallies to show their support for their Pakistani peers. But even as they do this, they are showing themselves to be splintered. Rather than organize a concerted, nationwide rally, groups are staging various events at various times and in various locations. Rather than the bar speaking loudly with one unified voice, many softer voices are competing for attention.

I wrote about this yesterday at my LawSites blog and I reiterate it here today because I believe this lack of coordination weakens the overall effort. Consider perhaps the most striking example: Lawyers in New York will stage two separate demonstrations today, at the same hour but in different locations. Three bar groups were slated to rally today outside Manhattan Supreme Court, while the National Lawyers Guild planned to have a rally for the same purpose at the same time but at the Pakistani Consulate on the Upper East Side. The NLG has organized rallies in various cities for today, with others including Boston, Washington, D.C., Chicago, San Francisco and Los Angeles. And while NLG lawyers will demonstrate in Washington today, lawyers organized by the American Bar Association will march to the Supreme Court tomorrow in a separate demonstration. Other lawyers' rallies took place last Friday in Minnesota and San Francisco and perhaps elsewhere.

Yes, any support is better than none and I applaud U.S. lawyers for taking to the streets in this way. But I can't help but think that the lack of coordination among bar associations has at least something to do with political differences between them, particularly in the case of the ABA and the NLG. Imagine how much more powerful these demonstrations could be if lawyers in cities across the country protested in a single location at the same hour. If Pakistani lawyers can stand together, we should do the same to show our support and outrage.

Within minutes of going on sale Sept. 29, tickets sold out to the hottest act on the concert circuit: 14-year-old Miley Cyrus, the actress who plays Hannah Montana in the Disney Channel series. Many of the tickets were scooped up by scalpers, resulting, as the Houston Chronicle says, in "national mayhem as parents claw for tickets."

One particularly perturbed group of parents are those who shelled out $29.95 to a Miley Cyrus fan site believing it would get them first crack at concert tickets. When their tweens were left ticketless, the parents turned to the courts.
Yesterday, lawyers from two states filed a class action lawsuit in federal court in Tennessee against the operators of the fan site, Interactive Media Marketing and Smiley Miley, the Pittsburgh Tribune-Review reports. Brought under the Tennessee consumer protection act, the suit seeks treble damages for anyone who joined the club believing it would help them score tickets.

The suit is filed in the name of Kerry Inman, a New Jersey woman who tried but failed to buy tickets to see Cyrus in Atlantic City.
"They deceptively lured thousands of individuals into purchasing memberships into the Miley Cyrus fan club, and that’s why we’re suing," said Robert Peirce of Pittsburgh, one of the two lawyers who brought the suit, in a statement. The other lawyer representing the plaintiffs is B.J. Wade from the firm Glassman, Edwards, Wade & Wyatt in Memphis. No response yet from the defendants.

The two anonymous female Yale law students who are suing the law school admissions forum AutoAdmit have dropped one defendant: Anthony Ciolli, the former University of Pennsylvania law student who once helped run the site. The women claim in their lawsuit that postings on the site threatened and demeaned them and interfered with their careers. Their lawyers filed an amended complaint Nov. 8 that drops Ciolli as a defendant.
But at the blog Concurring Opinions,
Dave Hoffman writes that the changes from the original complaint to
this amendment extend beyond dropping Ciolli:

Plaintiffs' theory of
harm seems to have shifted -- from one grounded largely in loss of
employment, to one grounded largely in a tort (IIED/false
light/defamation). Claims about loss of employment are gone, replaced
by much more detail about the attempts by Board posters to harass the
Doe plaintiffs. The result is a more streamlined theory of relief,
coupled with a viable damages claim. Moreover, the complaint ties the
XO board to an aborted attempt to set up a googlepages account to host
a 'contest' ranking law student attractiveness. This would seem like a
chink in defendants' anonymity shield.

At PrawfsBlawg,
Howard Wasserman agrees with Hoffman that the amended
complaint is stronger than the original, but he adds that the procedural
aspects of the case make it "a walking civ pro/fed courts exam." For
one, with Ciolli out, there are now no named defendants in the lawsuit;
all are identified only by screen names. For another, the case raises
various jurisdictional problems that could get it thrown out of federal
court. "It will be interesting to watch how these procedural issues
will play out as the plaintiffs try to find some identifiable
defendants in the coming months," Wasserman says.

Marc J. Randazza is the Florida lawyer who represented Ciolli, and at his blog, The Legal Satyricon, he publishes Ciolli's statement upon learning the news. Ciolli says, in part:

Had I remained as a defendant, the only theory could have been rooted in a desire to overturn Section 230. As I was merely an employee of AutoAdmit, leaving me in the suit would have been akin to suing a Google employee for anything found on a web page hosted by that company -- even if Google was not responsible for the content. The weakness of that theory was apparent to me from the beginning, as were the ramifications of its unlikely success -- an explosion of liability for every internet service provider in America."

November 12, 2007

And the Biggest Is....

The National Law Journal 250 is out, with great news for law firms: they've experienced their biggest growth spurt since 2001 (National Law Journal, 11/12/07). Topping the charts as the largest firm is DLA Piper with 3,623 attorneys, displacing Baker & McKenzie (with 3,335 attorneys) from the top perch, which it had occupied for nearly 30 years. What's even more amazing, DLA Piper did not even enter the top 25 until five years ago, but through mergers and expansions, reached the top two by 2005.

Firms are still looking to mergers to power further growth. Mergers contributed to the greatest gains in individual law firm growth in 2007. Even so, many of the largest firms still question whether they are big enough to serve clients, according to Bill Brennan, a law firm consultant quoted in the article.

At the same time, despite strong showings last year, Brennan predicts that the good times may not continue. According to Brennan, "Ripples from the mortgage debt crisis, the war in Iraq and escalating tension with Iran are all poised to undercut the economy." And many law firms are re-evaluating their business model, including the traditional, highly-leveraged use of the billable hour, in response to client demands.

As I see it, if the statistics from 2007 are any indication, the billable hour won't be abandoned any time soon. In some respects, larger law firms are better for clients in that they enable one-stop shopping. But more than anything, bigger is also better for partners, because it means more associates buzzing away on billable hours that sustain partner profits. With technology enabling firms to outsource or improve efficiency, firms shouldn't need to grow as fast as they are to serve clients. In my view, the only factor that explains this exponential growth is that the billable hour is here to stay, and indeed, matters more than ever.

Every so often, law firms make foolish personnel decisions with repercussions that acquire a far longer than anticipated shelf life, preserved even longer than Twinkies by the power of the blogosphere. And if you don't believe it, consider the legacy of firms like Reed Smith, Sidley Austin or Sullivan & Cromwell. So up until now, powerhouse law firm Paul Weiss should consider itself fortunate that its decision back in 1959 to reject Supreme Court justice Ruth Bader Ginsburg predated the advent of the Internet. Otherwise, the firm might have looked awfully foolish. Or perhaps not. Because as I learned in this engrossing profile,
Balancing Act: Ruth Bader Ginsburg Remembers Her First Steps in the Law, Ginsburg is grateful to the law firms that spurned her, explaining that if she had been able to get a job in a corporate law firm when she finished law school, she would be a retired partner today, not a Supreme Court justice.

If you have the time, take a look at the Ginsburg profile. Most of all, it bears out that when it comes to the success of women in the profession, so much has changed (presumably, firms no longer reject female candidates with Ginsburg's credentials), yet so much still remains the same: While law firm policies are important, ultimately, it takes a family (in Ginsburg's case, a supportive husband and in-laws) and an ability to overcome adversity for women to maximize their professional potential in the law.

With so many law related blogs -- 1,500 in all, according to the ABA's home page, hosting Blawg Review is becoming a marathon task. But Eric Turkewitz proves, quite literally, that he's up for the challenge, with a New York marathon-themed Blawg Review #134, hosted by Turkewitz's New York Personal Injury Law Blog. Turkewitz's Blawg Review sets a record pace, covering at least sixty different posts around the blogosphere without once stepping out of its marathon-themed stride. And like any good host, Turkewitz provides free refreshments, in this case an added helping of "best of" blog from his New York Personal Injury Law Blog.